Kanam v. Secretary of the Interior ( 2021 )

UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF COLUMBIA
KURT KANAM,
Plaintiff,
Civil Action No. 20-cv-2322 (RDM)
v.
SECRETARY OF THE INTERIOR, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Kurt Kanam, proceeding pro se, brings this action under the Administrative
Procedure Act, 5 U.S.C. § 701 et seq. and the Declaratory Judgment Act, 28 U.S.C. § 2201 et
seq., apparently challenging the decision of a Department of Interior Administrative Law Judge
regarding the validity of a mining claim. Dkt. 1 at 2–3 (Compl. ¶¶ 8, 11). He names the
Secretary of the Interior, the Bureau of Land Management’s Alaska Regional Director, and the
Administrative Law Judge, Veronica Larvie, as defendants. Id. at 2 (Compl. ¶¶ 5–7).
Because Plaintiff had failed to file proof of service long after he filed suit, the Court issued
an order pursuant to Federal Rule of Civil Procedure 4(m) giving Plaintiff until December 22,
2020—124 days after Plaintiff filed suit—either to “cause process to be served . . . and proof of
service to be filed with the Court or [to] establish good cause for the failure to do so.” Dkt. 3 at
1–2. On December 22, 2020, Plaintiff sought to comply with that order by asserting “under
penalty of perjury” that he had “mailed a copy of the summons and complaint for this action to
the Parties at their addresses of record.” Dkt. 4 at 1. Three certified mail receipts accompanied
that “Affidavit of Mail[ing].” Id. at 2. One receipt was addressed to the “Office of Veronica
Larvie;” the second was addressed to the “Office of the Sec. of Int.” Id. Although the address of
1
the third receipt was obscured, id., the Court assumed that it was addressed to the third
defendant, the Office of the Alaska Regional BLM Director. Dkt. 5 at 1.
In an order issued on January 29, 2021, the Court explained that Plaintiff’s attempted
service did not comply with the Federal Rules of Civil Procedure for two reasons. First, Plaintiff
had personally served Defendants by mail, in violation of Fed. R. Civ. P. 4(c)(2), which bars
service by anyone who is a party to the case. Id. at 2. Second, Plaintiff failed to serve the
necessary recipients specified in Fed. R. Civ. P. 4(i), which governs service on the United States,
its agencies, corporations, officers, or employees. Id. That provision requires a qualified person
(1) to “deliver a copy of the summons and of the complaint to the United States attorney for the
district where the action is brought—or to an assistant United States attorney or clerical employee
whom the United States attorney designates in a writing filed with the court clerk” or to “send a
copy of each by registered or certified mail to the civil-process clerk at the United States
attorney’s office;” and (2) to “send a copy of each by registered or certified mail to the Attorney
General of the United States at Washington, D.C.” Fed. R. Civ. P. 4(i)(1). Here, however,
Plaintiff, provided only proof of mailing to the named Defendants’ offices, which is a separate
requirement under Rule 4(i)(2) and (3). After explaining these shortcomings, the Court granted
Plaintiff another opportunity to effect service in compliance with Rule 4(c)(2) and 4(i). In order
to ensure that Plaintiff had ample time to do so, moreover, the Court gave Plaintiff seven weeks—
until March 19, 2021—to effect service “in compliance with Federal Rule of Civil Procedure 4”
and to file “proof of service” with the Court. Dkt. 5 at 3. The Court cautioned Plaintiff that
“[f]ailure to comply with [the Court’s] order will result in dismissal of this case.” Id.Eleven days after this deadline, on March 30, 2021 Plaintiff filed an affidavit, stating
under penalty of perjury that he “had served the US attorney in Salt [L]ake and the US [c]ivil
2
process clerk via certified mail.” Dkt. 7 at 1. That filing fails to make even a half-hearted effort
to comply with the Court’s order. For one thing, Plaintiff attests that he has—once again—
personally served the summons and complaint via mail. But as the Court previously explained,
“Rule 4(c)(2) is violated when a plaintiff personally attempts to serve a defendant—including the
United States—by mail.” Dkt. 5 at 2 (quoting Olson v. Fed. Election Comm’n, 256 F.R.D. 8, 10
(D.D.C. 2009)). For another, Plaintiff ignores the Court’s instruction—and Rule 4’s direction—
that he serve the Attorney General, as required by Rule 4(i).1
Federal Rule of Civil Procedure 4(m) provides that:
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause for the failure, the
court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m); see also Fed. R. Civ. P. 4(i)(4) (requiring courts to provide parties with “a
reasonable time to cure” certain defects in service on a federal agency). Here, Plaintiff has not
offered proof of service, nor has he shown good cause for his failure to effect service in
compliance with Rule 4. In light of the multiple chances Plaintiff has had to effect service, the
ample time that he has had to do so, and his repeated failure to satisfy the requirements of Rule
1
It is unclear whether Plaintiff served the civil process clerk in the District of Columbia, or the
civil process clerk in Salt Lake City, Utah. Although the summons suggests the former, Dkt. 6 at
2, Plaintiff’s declaration does not indicate which civil process clerk he served: he attests that he
“served the US Attorney in Salt [L]ake and the US civil process clerk via certified mail.” Dkt. 7
at 1. If he served the civil process clerk in Utah, then this constitutes a further failure to comply
with Fed. R. Civ. P. 4(i)(1), which requires service on the civil process clerk for the United
States attorney’s office in the district where the action is brought—here, the District of
Columbia—or on “the United States attorney” or her designated assistant or clerical employee in
that district. Fed. R. Civ. P. 4(i)(1)(A).
3
4 and to comply with the Court’s instructions, the Court will dismiss his case without prejudice
pursuant to Rule 4(m).
A separate order will issue.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: April 7, 2021
4